Posts from the ‘Limitation Periods’ Category

In Giroux v. Mueller the main question was whether there should be a retroactive adjustment to the child support owed by the father, and if so, how far back it should go. In making this determination, the court confirmed the general tests and considerations that must be applied under Ontario law whenever retroactive support is being claimed.

As background: Originally, the father had been ordered to pay $520 per month in child support for the couple’s two daughters, based on the Child Support Guidelines. He was up-to-date in his payments.

However, since the initial order was made, one of the daughters had graduated from high school in 2007 and had gone on to college, but by law had ceased to be eligible for support in 2010. The other daughter had also graduated high school in 2011, and commenced university that same year.

In light of these changes, the mother brought a motion for an adjustment to the Guidelines support amount, making it retroactive to January 2006. The basis for her request was somewhat novel: she asserted that the father had an obligation to disclose any increases in his income, and that his failure to make such disclosure after the mother’s request in 2011 is “blameworthy conduct” which entitles her to back-dated support for the children.

The father opposed the mother’s motion, claiming that if support should be retroactive, it should go back only to 2009, which was three years back from the date on which the motion was brought in 2012.

The court considered the applicable law. The issue of retroactive of support was dealt with by the Supreme Court of Canada in a case called S. (D.B.) v. G. (S.R.), where the court confirmed that every parent has the obligation to support his or her child, and that retroactive support is not “exceptional”. Rather, both parents have the responsibility of ensuring that the child receives appropriate support and any obligation is enforceable only once the recipient parent applies for it.

Next, the test for whether retroactive support should be granted involves a court considering: 1) the reasons for delay, 2) any blameworthy conduct by the paying parent; 3) the circumstances of the children; and 4) any hardship experienced by the paying parent. And while it is the “blameworthy conduct” factor that often attracts the most attention, in law all four of these factors must be considered “holistically”, with no single factor being paramount to the others.

There are also two general rules that apply to such scenarios: 1) retroactive child support extends back three years from the date the paying spouse is given notice (for example by the fact that an application for an adjustment to support is launched with the court), unless there has been blameworthy conduct; and 2) the child must be a “child of the marriage” – and therefore eligible to receive support – at the time the application is made.

The court then applied these tests to the facts at hand. Here, it was clear that by imposing the “child of the marriage” criterion at the outset, one of the daughters no long qualified for support at the time the mother’s application was brought.

As for the reasons for the delay, the mother gave no palpable reason for her failure to pursue an adjustment to support until 2011. She knew the father’s whereabouts, had no fear of him retaliating, and did not lack the financial or emotional means to pursue the claim earlier.

The court also considered the other enunciated factors: in law, “blameworthy conduct” could include failure to pay child support (which was not the case here), but the refusal to disclose income had to be viewed against the fact that the mother did not request disclosure until 2011, which was almost 13 years after the initial child support order had been made. The “financial hardship” criterion related to the paying parent; it could not include consideration of sacrifices made by the parent in receipt of the support.

In the end – and because the effective notice to the father was given only in 2011 when the mother launched the motion to vary – retroactive support was to be limited to the three-years previous to that date, and was to relate to the second child only.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

Step-Mom’s Arguments Were Creative, But Lawsuit Against Her Step-Sons Was Likely Still Out of Time

A court decision released about a week ago illustrates the importance of bringing court actions in a timely manner — even when they involve family members!

In Laidlaw v. Laidlaw, the stepmother was prompted to sue her late husband’s sons (i.e. his children from a first marriage). She claimed that before he died, she and her husband had paid the sons $52,000 as a down payment toward the purchase of a condominium. Although the condominium was registered in the sons’ names, the stepmother said that the understanding was that, in exchange for the $52,000, she and the husband would live there for the rest of their lives.

Indeed, she and the husband did move in in July of 2004. Unfortunately, the husband died a few months later. The stepmother continued to live there after his death, but moved out in 2006 after getting into a dispute with the sons over the rent she was paying to them.

In 2006, the stepmother retained a lawyer who wrote to the sons, setting out her position and proposing that the $52,000 be returned to her. Perhaps not surprisingly, the sons refused, claiming that the money was a gift to them from their father while he was still alive.

The stepmother did not launch her court action against the sons until January of 2011, which was more than five years later. Unfortunately, in Ontario there is legislation that sets out limitation periods, meaning the time within which a court action must be commenced. Specifically, the Limitations Act provides that actions such as the stepmother’s must be commenced within two years of the date that the she knew she had a claim against the sons for the $52,000.

On first blush, it appeared that the stepmother had missed the deadline. However, she had some creative legal arguments to try to circumvent it.

For one thing, she claimed that if the sons were unwilling to repay her the $52,000, then they owed her $3,000 per month under an “expressed and/or implied” contract between them which was designed to ensure she could “maintain a proper and decent standard of living.” She asserted that this was an implied contract to essentially reimburse her for the losses she suffered as a result of the sons refusing to repay the $52,000 and from her not being able to use the condominium. Alternatively, she claimed there was an express and/or implied contract to support her.

More importantly, she claimed that because these so-called contractual obligations were continuing and ongoing, the 2-year limitation period was “refreshed” every month, so her claims were not statute-barred.

As a further argument, she claimed that the sons had an obligation under the “parental support” provision of the Family Law Act to support her. (That provision obliges every child who is not a minor to provide support – in keeping with the parent’s need and the child’s ability to pay – to a parent who has cared for or provided support to that child.)

The sons brought a motion to dismiss the stepmother’s claim outright, as being “vexatious and an abuse of process”, mainly on the basis that her action was out of time and accordingly statute-barred.

The judge on the motion refused to grant that order. Instead, he accepted the stepmother’s argument that the claim respecting the sons’ provision of liveable accommodation was ongoing or continuing, and that the limitation period was refreshed each month, so the wife’s claim was not out of time. He allowed the matter to proceed to trial.

However, the sons brought the matter back before the court, asking leave to appeal the motion judge’s ruling. They succeeded, in that they were allowed to appeal.

First of all, the court refuted the motion judge’s finding that this was a continuing obligation on the part of the sons to pay her $3,000 a month or provide her with living accommodation. This was not a contract for periodic payments such as payments under disability insurance or instalment payments under a loan. Instead, the contract (if any) came to an end when the stepmother moved out of the condominium in 2006.

Nor was the court persuaded that the sons might have owed the stepmother any obligation under the parental support provisions of the Family Law Act, as the motion judge seems to have found. After all, she had never cared for or supported them; she did not even know them when they were young (having married their father later in life, when the sons were already grown).

As such – and since there was reason to doubt the correctness of the motion judge’s order – the court granted the sons leave to appeal, which meant they could have the matter heard again (and hopefully have the stepmother’s action dismissed entirely.
For the full text of the decision, see:

Wife in State of “Blameless Ignorance”; Eight-year Delay in Seeking Rights Excused

A recent case before the Ontario court involved two separated spouses who were very lax about unwinding their legal and financial affairs. The court had to determine whether the wife had run out of time for doing so.

The husband and wife were married in 1971, and had four children. The wife left the matrimonial home around 2000, but did not start proceedings for spousal support and division of family property until eight years later, in 2008. Despite being properly served with the court materials, the husband did not defend the proceedings whatsoever. The court eventually awarded the wife her spousal support entitlement in 2011.

However, the question of the division of net family property remained a live issue. Unbeknownst to the wife, she had a time-limit: under s. 7(3) of the Family Law Act, the deadline for her to bring an application for division of net family property expired in 2006, being six years after the 2000 separation. The wife brought a motion to extend the time for taking that step. Once again, the husband did not appear or file any materials on that motion.

The question before the court was whether it should extend the wife’s deadline; the court had the power to do under s. 2(8) of the Family Law Act, provided that the three tests specified in that legislation were met. The tests were whether:

1) there are apparent grounds for relief;

2) the wife’s delay was incurred in good faith; and

3) the husband would suffer no substantial prejudice because of the wife’s delay.

As a preliminary point – and despite some quibbling by the parties on the issue – the court confirmed that the separation date, being the point after which there was no reasonable prospect of reconciliation, could be pegged as July 1, 2000. Two isolated occasions on which the parties had sexual intercourse, occurring in 2006 and 2009, did not amount to a “reconciliation”. Therefore, the six-year limitation period had indeed expired by 2008.

Next, applying the first element of the three-prong test, the court found there were “strong grounds” in this case for allowing the wife to continue with her application, even if the limitation period had technically expired.

Specifically, the wife had a good legal claim for equalization of family assets; she had merely left it too long before claiming for it. Also, this was a long-term marriage that produced four children, and the wife had left the matrimonial home in 2000 with only the clothes on her back in order to escape the husband’s abuse and alcoholism, which was causing her to become depressed. Finally, the court considered the fact that the husband did not respond to either the application, or to the motion to extend time.

The first branch of the test was accordingly met.

Next, the second branch was satisfied as well: the court found that the wife at all times had acted honestly, and with no ulterior motive. The court found that she was in a state of “blameless ignorance”, and had never sought legal advice in the eight years since separating from the husband.

Finally, the court considered the third question, of whether the husband had suffered prejudice. In this case the only real asset that was potentially affected by the wife’s delay was the husband’s pension. However, according to the law, its value was to be determined and set on the date of the separation, not after. Therefore, no matter how long the wife delayed in bringing her application, the pension value was determined as of July 1, 2000 and was completely unaffected by the passage of time. The court also considered the husband’s failure to respond to any of the court materials as being reflective of the lack of prejudice to him.

As a result, the court found the three-pronged test for granting an extension had been met, and allowed the wife to continue her application for division of net family property.

On the facts of this particular case, the court showed tolerance of the wife’s delay in seeking her rights after separation. However, deadlines are normally very strict and it can be costly to go to court to try to get them extended. Our lawyers and staff at Russell Alexander, Family Lawyers can provide timely advice and to your individual rights, and how and when to pursue them. For more information, visit us at www.RussellAlexander.com

For the full-text of the decision, see Duncan v. Duncan, 2011 ONSC 2078 http://bit.ly/j3cbKT

It may be a little-known fact that in Ontario, there is a deadline for spouses to claim for an equalization payment after separation. A recent case illustrates what can happen when one of the parties fails to act promptly.

The spouses in Martynko v. Martynko were married in 1997, but separated in 2002. In keeping with their separation negotiations at that time, the husband paid the wife $50,000 so that she could buy herself a house to live in, and in 2003 they both signed a handwritten confirmation of what they called an “out of court settlement.” At this time the wife also set up a separate bank account, and began sleeping in separate bedrooms until her new home was finished being built.

In 2006, the husband started divorce proceedings, which the wife did not defend despite being properly notified. The divorce was granted that same year, and the husband remarried in 2008. Shortly after, in August of that same year, the wife brought a court action under the Family Law Act for division of property and spousal support.

The husband pointed out that Ontario law provides for a statutory limitation period for applications of this nature: the wife was required to bring her claim within six years from “the day the spouses separate and there is no reasonable prospect that they will resume cohabitation”.

The court was asked to determine whether the wife was out of time. Using well-established legal tests as to when a couple is considered to be “separated” for legal purposes, it found that the marriage effectively “died” when the husband made the $50,000 payment to the wife in 2002; after this date, there was no reasonable prospect of reconciliation between the spouses. Therefore, for family law purposes, the separation date was in 2002. And since more than six years had passed at the time the wife brought her equalization application, she was too late.

The court did consider the fact that the Family Law Act allows for extension of the 6-year limitation period in some narrow circumstances; however, the wife in this case had failed to respond to the divorce application, had not brought a motion to extend the limitation period, had shown no good reason for not contacting a lawyer to determine her rights, and had shown no other good faith reason as to why an extension should be granted in her case.

Indeed, to allow the wife to proceed with the equalization application at this point would result in significant prejudice to the now-remarried husband, who had relocated to a new city and had purchased a heavily-mortgaged home with his new wife.